ADVERTISEMENTWhen a lawyer is engaged in an independent
activity which will, by its very nature, probably result in his counseling another person
regarding matters of law, and when the activity is such that such other person is,
directly or indirectly, employing or paying him for such counseling, the lawyer cannot, in
his advertisement for the independent activity, refer to the fact that he is a lawyer nor
to his legal training even though he is not generally holding himself out as a practicing
lawyer. This opinion thus modifies Opinion No. 194.

A clinic psychologist, holding a Ph.D. degree and being a licensed
lawyer, is engaged in the practice of Marriage Counseling. In the classified section of
the local telephone book he desires to use a block, or display, advertisement setting
forth his credentials, including his membership in the State Bar of Texas and the American
Bar Association. He purports not to practice law.

Opinion

There often arises the situation of one who, while purporting not to
practice law, is engaged in an activity very close to the practice of law and who wants to
advertise his legal background so as to indicate his particular fitness for the
independent activity in which he is engaged.

Lawyers are, of course, generally forbidden to seek clients by
advertisements on the principle that the legal business of clients should not be solicited
commercially. There is little problem, consequently, when one is practicing law or is
holding himself out to the public as being engaged in law practice because it has been
clearly set out that he cannot advertise another activity so as to solicit, directly or
indirectly, legal business for his law practice, nor can he engage in such other activity,
as will serve to feed his law business.

On the other hand, a lawyer can engage in any proper business he
desires as an independent business; and, if he runs a grocery store, he can run in the
newspaper all the grocery store advertisements he wishes. Because of this, it follows that
one who is engaged in an independent business can advertise in it so long as it does not
indirectly advertise his, or feed his, law practice. From this, then, one could easily
conclude that, where the attorney is not practicing, he can, in his advertisements of his
independent business, refer to his status as a licensed attorney or law school graduate,
since this could not possibly feed a non-existent law practice. See Texas Opinion No.194.

Here is, however, the question of what constitutes the practice of law.
It is certainly not limited to going to court; the office lawyer who merely counsels is
practicing law. The committee feels that one is engaged in the practice of law when he is
acting in some fiduciary capacity to the person counseling with him and when he gives to
that person advice requiring some expert knowledge of the law, and particularly when he is
holding himself out to that person as having some expert knowledge of law.

It would not seem possible, for example, for an insurance salesman to
advertise himself as a lawyer and to counsel with prospects about the use of insurance in
planning their estate and, at the same time, avoid practicing law. By the same token, it
would seem impossible that a licensed lawyer can advertise that he is a lawyer and thus
hold himself as having expert knowledge of law, then, act in a fiduciary capacity with a
"client" as "marriage counselor" and, at the same time, avoid giving
some advice to that person which amounts to the practice of law. If this conclusion is not
correct, it is difficult to understand why it would be of any advantage to advertise
membership in the bar.

It can be seen, therefore, that there are some fields which, if engaged
in as an independent activity by a licensed lawyer, are so interrelated with the legal
profession that it would be impossible for a licensed lawyer to avoid giving some advice
which would amount to practicing of law. The American Bar Association has held that the
fields of investment counseling and marriage counseling are too nearly related to the
practice of law to justify a lawyers advertising in connection with them (ABA App. A
195742, 44 and 41A) and has also reached the same conclusion relative to an income,
inheritance, and government tax service. (ABA Opinion 260).

Our committee would draw the line in this way: When a lawyer is engaged
in an independent activity which will, by its very nature, probably result in his
counseling another person regarding matters of law, and when the activity is such that
such other person is, directly or indirectly, employing or paying him for such counseling,
the lawyer cannot, in his advertisements for the independent activity, refer to the fact
that he is a lawyer nor to his legal training even though he is not generally holding
himself out as a practicing lawyer. (This opinion thus modifies Opinion 194.)

The conclusion of the committee is that the advertisement which the
clinical psychologist desires to use in the classified section of the telephone book
violates Texas Canon 24 and ABA Canon 27. (9-0).